FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BRL HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware 88-0218411
(State or other jurisdiction of (I. R. S. Employment Number)
incorporation or organisation)
CONSULTANT STOCK ISSUED TO CONSULTANTS AND EMPLOYEES
(Full title of Plan)
R. BRUCE REEVES 340 GRANITE STREET, SUITE 200, MANCHESTER, NH 03102
(Name and Address of Agent for Service)
(603) 641-8443
(Telephone number including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Maximum Offering Aggregate Offering Amount of
To be Registered Registered (1) Price per Share Offering Price registration fee
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Common Stock (1) 254,684 $ 0.35 $ 89,140.00 $23.53
Common Stock (2) 253,800 $ 0.35 $ 88,830.00 $23.45
(1) Pursuant to consultants' agreements for services rendered to the Company's
wholly owned subsidiary, AssureTec Systems, Inc.
(2) Issued in lieu of employee payroll costs and reimbursable benefits for
employees of the Company's wholly owned subsidiary, AssureTec Systems, Inc. Not
pursuant to Employees Stock Option Plan of 1992.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan (s) Information.
The information required in Part I includes a copy of the proforma
consultants agreement and a proforma employee agreement with the Company's
wholly owned subsidiary, AssureTec Systems, Inc.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant is subject to the information requirements of the
Securities Exchange Act of 1934 and, in accordance therewith, files reports with
the Securities and Exchange Commission ("The Commission"). The documents listed
below are hereby incorporated by reference in this Registration Statement on
form S-8; and all documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which de-registers all securities and remaining unsold, shall be deemed
to be incorporated herein by reference in this Registration Statement on Form
S-8, and shall be a part hereof from the date of the filings of such documents.
(a) The Registrant's annual report on Form 10-KSB for the fiscal year ended
June 30, 2001 and
(b) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since June 30, 2001 and
(c) The description of the Common Stock, which is contained in the
registration statement filed under the Exchange Act, including any
amendment or report, filed for the purpose of updating such
description.
Item 4. Description of Securities
Not applicable.
Item 5. Interest of Named Experts and Counsel
The validity of the authorisation and issuance of the Common Stock will
be passed upon by John B. Lowy, P. C., Suite 403, 645 Fifth Avenue, New York,
New York 10022.
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Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify any person who is, or is threatened to be made, a party
to any threatened, pending or completed action, suit or preceding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of such corporation) by reason of the fact that such person is or was
an officer or director of such corporation, or is or was serving at the request
of such corporation as a director, officer, employee or agent or another
corporation or enterprise. The indemnity may include expenses (including
attorney's fees), judgements, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suite or
proceeding, provided that he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest of the corporation, and,
with respect to any criminal action or proceeding, has no reasonable cause to
believe his conduct was unlawful. A Delaware corporation may indemnify officers
and directors in an action by or in the right of the corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation. Here an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above; the corporation must indemnify him against the expenses,
which he actually and reasonably incurred in connection therewith. The
indemnification provided is not deemed to be exclusive of any other rights to
which an officer or director may be entitled under a corporation's by-laws, an
agreement, vote or otherwise.
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (I) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts of omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit.
Article EIGHT of the Registrant's Certificate of Incorporation, as
amended, sets forth the extent to which directors and officers of the Registrant
may be indemnified against liabilities which they incur in their capacities as
directors or officers of the Registrant. Article EIGHT also provides that
director or the Registrant shall not be liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director to
the fullest extent such limitation is permitted by the Delaware General
Corporation Law.
Article V of the Company's By-laws provides as follows:
The corporation shall indemnify any and all of its Directors or Officers or
former Directors or Officers or any person who may have served at its request as
a Director or Officer of another corporation in which it owns shares of capital
stock or of which it is a creditor against expenses actually and necessarily
incurred by them in connection with the defense of any action, suit or
proceeding in which they, or any of them, are made party, or they, by reason of
being or having been Directors of Officers or a Director or Officer of the
corporation, or of such other corporation, except, in relation to matters as to
which any such Director or Officer or former Director or Officer or person shall
be adjudged in such action, suits or proceedings to be liable for negligence or
misconduct, in the performance of duty. Such indemnification shall not be deemed
exclusive by any others' rights to which those indemnified may be entitled,
under By-law, agreement, vote of stockholder or otherwise.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. Exhibits
4.1 Certificate of Incorporation of the Registrant (1)
4.2 Amendment to Certificate of Incorporation of the Registrant changing
the name of the Corporation to Biorelease Corp (1) and subsequent
amendment to Certificate of Incorporation of the Registrant changing
the name of the Corporation to BRL Holdings, Inc. (2)
4.3 By-laws, as amended, of the Registrant (1)
OTHER EXHIBITS
4.4 Minutes of the Board of Directors authorizing the issue of 508,484
shares of the company's common stock.
4.5 A proforma consultant's agreement with the Company's wholly owned
subsidiary, AssureTec Systems, Inc.
4.6 A proforma employee's agreement with the Company's wholly owned
subsidiary, AssureTec Systems, Inc.
--------------------------
(1) Previously filed with the Commission as an Exhibit to the
Registrant's Registration Statement on Form S-1, as amended, File No.
33-43976 that was originally filed with the Commission November 14,
1991.
(2) Previously filed with the Commission on Form 8-K that was originally
filed with the Commission on May 2, 2001.
Item 9. Undertakings
1. The undersigned Registrant hereby undertakes to file during any period
in which offers or sales are being made, a post-effective amendment to
this Registration Statement to include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in
the Registration Statement.
2. The undersigned Registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. The undersigned Registrant hereby undertakes to remove from
registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of
the offering.
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4. The undersigned Registrant hereby undertakes that for purposes
of determining any liability under the Securities Exchange Act of 1934
that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement related to the securities
offered therein, and the offering of such securities at such time shall
be deemed to be the initial bona fide offering thereof.
5. Insofar as indemnification of liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement on Form S-8 to be signed on its behalf
by the undersigned, thereunto duly authorised, in Manchester, New Hampshire, on
the date set forth below.
BRL Holdings, Inc.
Dated: January 15, 2002 By: /s/ Richard F. Schubert
-----------------------
Richard F. Schubert, Chairman
Pursuant to the requirements of the Securities Act of 1933, the
following persons on behalf of the Company and in the capacities and on the
dates indicated have signed this registration statement below.
SIGNATURES TITLE DATE
/s/ R. Bruce Reeves Principal Executive Officer January 15, 2002
-------------------
R. Bruce Reeves and Director
/s/ Bruce C. Monk President and Director January 15, 2002
-----------------
Bruce C. Monk
/s/ Kevin T. McGuire Treasurer and January 15, 2002
--------------------
Kevin T. McGuire Principal Financial Officer
/s/ Richard F. Schubert Director January 15, 2002
-----------------------
Richard F. Schubert
/s/ Richard Whitney Director January 15, 2002
-------------------
Richard Whitney
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CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in BRL Holdings, Inc. Form S-8
dated January 15, 2002 of our audit report dated August 22, 2001 on the
financial statements of BRL Holdings, Inc. as of and for the year ended June 30,
2001, which is included in BRL Holdings, Inc's Annual Report on Form 10-KSB for
the year ended June 30, 2001.
Good Swartz Brown & Berns LLP
Los Angeles, California
January 15, 2002
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CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in BRL Holdings, Inc. Form S-8
dated January 15, 2002 of our audit report dated October 13, 2000 on the
financial statements of BRL Holdings, Inc. as of and for the year ended June 30,
2000, which is included in BRL Holdings, Inc.'s annual Report on Form 10-KSB for
the year ended June 3, 2001.
Ferrari and Associates, P. C.
Newbury Park, California
January 15, 2002
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CONSULTANTS AND EMPLOYEES PAID BY ISSUANCE OF STOCK AT FAIR MARKET VALUE
FOR SERVICES, BENEFITS AND REIMBURSABLE EXPENSES
(1) Consultants Howard Denton 54,571
Joseph Funk, Sr. 35,714
Joseph Funk, Jr. 103,225
William Tuttle 61,174
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Total consultants 254,684
(2) Employees Theodore Kuklinski 49,157
Todd Reeves 78,071
John Tiedemann 70,429
Vincent Spoto 56,143
-------
Total employees 253,800
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PROFORMA CONSULTANT AGREEMENT
This Consultant Agreement ("Agreement") is made by AssureTec Systems,
Inc. ("ATS ") having a place of business at 340 Granite Street, Suite 200,
Manchester, N.H. 03102 - 4004, its successors and subsidiaries worldwide, and
----------------------------------------- ("Consultant") with his/her principal
office at_______________________________________ ______________________________,
and effective this _____ day of ______________, 20___ ("Effective Date") for the
purpose of setting forth the exclusive terms and conditions by which ATS
acquires Consultant's services on a temporary basis.
In consideration of the mutual obligations specified in this Agreement,
and any compensation paid to Consultant for their services, the parties agree to
the following:
1. Work To Be Performed By Consultant
(a) Initially this Agreement shall expire on________________ , but may
be extended month by month on written agreement of the parties.
(b) Consultant is hereby engaged by ATS to perform the work defined in
the Work Statement in Appendix A. (Include work milestones, dates, fixed
payments and any other pertinent information - if any.)
(c) ATS, at its sole discretion, may change the Work Statement at any
time by giving written notice to Consultant. Immediately upon receipt of written
notice from ATS narrowing the Work Statement, the Work Statement is deemed to be
amended accordingly, and Consultant will cease any work on the portion of the
Work Statement that is deleted.
(d) ATS may request that the Work Statement be broadened and Consultant
will negotiate in good faith with ATS to amend the Work Statement to include the
broadened work.
(e) ATS may request that the Work Statement be otherwise amended
without narrowing or broadening the Work Statement and Consultant will negotiate
in good faith with ATS to amend the Work Statement. Examples are changes in
milestones and fixed payments.
(f) This Consultant Agreement with Consultant is personal and any work
to be performed under it cannot be assigned to other s without the written
approval of ATS.
2. Compensation.
(a) Consultant will perform the work defined in the Work Statement and
will submit to ATS a monthly/weekly work report and a bill for work performed at
a rate of compensation of $______ per hour. On a monthly/weekly basis ATS will
pay Consultant for the work performed and billed. Prior to ATS reaching a
contributed equity level of $500,000, Consultant shall accrue (_____%) of such
compensation. The term for the accrual shall not exceed a period of 90 days
unless extended by both ATS and Consultant. Upon ATS reaching $500,000 in
contributed equity, all accrued compensation shall become currently payable. No
agreement exists or shall be implied to provide any other form of compensation
to Employee.
(b) In addition to the rate of compensation described in this Section,
on the Effective Date hereof Consultant shall receive a one-time stock option
award to acquire _____ shares of common stock of ATS. The exercise price for
these options shall be $ 0.001 per option share.
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3. Non-Disclosure And Trade Secrets
(a) During the term of this Agreement and in the course of Consultant's
performance hereunder, Consultant will receive and otherwise be exposed to
highly confidential information belonging to ATS, its customers, suppliers and
others. Such confidential information includes, but is not limited to, ATS's
marketing and customer support strategies, ATS's financial information including
sales, costs, profits, and pricing methods, ATS's internal organization,
employee lists and customer lists, ATS's access nodes and/or codes, ATS's
technology including discoveries, inventions, research and development efforts,
manufacturing processes, hardware/software design and maintenance tools, and
hardware/software product know-how and show-how, and all derivatives,
improvements, and enhancements to any of the above which are created or
developed by Consultant under this Agreement (collectively referred to as
"Information").
(b) Such Information may or may not contain legends or other written
notice that is of a confidential nature. Such Information shall not be
considered confidential if it: (a) was in the public domain or becomes part of
the public domain, by publication or otherwise, except by an unauthorized act of
Consultant or someone else.
(c) Consultant acknowledges the highly confidential character of the
Information, and agrees that the Information is the sole, exclusive and
extremely valuable property of ATS or third parties, and wrongful disclosure to
others will cause irreparable harm to ATS or the third party owners. Consultant
agrees not to reproduce any of the Information except as is necessary in the
performance of work contemplated under this Agreement, and not to divulge all or
any part of the Information in any form to any third party, either during or
after expiration or termination of this Agreement.
(d) ATS shall exercise reasonable care either to prominently and
legibly mark all corporeal forms of Information supplied to Consultant with the
legend "Confidential" or equivalent, or, if the Information is originally
provided to Consultant without a "Confidential" legend, it shall be considered
Confidential under this Agreement if such information is identified to
Consultant as being Confidential within ten (10) business days of its original
disclosure.
(e) Upon expiration or termination of this Agreement for any reason,
Consultant agrees to cease using and to return to ATS all whole and partial
copies and derivatives of ATS's Information, whether in Consultant's possession
or under Consultant's direct or indirect control, including any computer access
nodes and/or codes.
(f) Consultant shall not disclose or otherwise make available to ATS in
any manner any confidential and proprietary information received by Consultant
from third parties.
(g) This Section 3 shall survive the termination of this Agreement for
any reason.
4. Ownership Of Work Product
(a) Consultant agrees that any and all work product, ideas,
improvements, inventions, copyrights, trademarks and trade secrets ("work
product") conceived, created or first reduced to practice in the performance of
work under this Agreement for ATS are a "work for hire" and ATS shall be vested
with all rights, title, and interests including patents, copyrights, trade
secrets and trademark rights in Consultant's work product. Consultant agrees
that they shall execute all papers including, but not limited to, patent and
copyright applications, patent and copyright assignments, and shall otherwise
assist ATS, at ATS's expense, and as reasonably necessary to perfect all ATS's
rights, title and other interests in Consultant's work product.
(b) This section 4 shall survive the expiration or termination of this
Agreement for any reason.
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5. Indemnification / Release
(a) Consultant agrees to take all reasonable precautions to prevent
injury to any persons (including employees of ATS) or damage to ATS's property
while at ATS's work site. Consultant shall indemnify and hold ATS and its
officers, agents, directors, and employees harmless against all claims, losses,
expenses (including reasonable attorney's fees), and injuries to person or
property (including death) resulting in any way, from any negligence on the part
of Consultant in the performance or failure to perform the Scope of Work under
this Agreement, excepting only those losses which are due solely and directly to
ATS's negligence.
(b) Consultant warrants that he/she has good and marketable title to
all work product made, created, conceived, written, invented, or provided by
Consultant to ATS while fulfilling the requirements of the Work Statement of
this Agreement. Consultant further warrants that work product created for ATS
shall be free and clear of all liens, claims, encumbrances, or demands of third
parties, including any claims by any such third parties of any right, title, or
interest in or to the work product arising out of any trade secret, copyright,
or patent. Consultant shall indemnify, defend, and hold harmless ATS and its
customers from any all liability, loss, costs, damage, judgment, or expense
(including reasonable attorney's fees) resulting from or arising in any way out
of any such claims by any third parties, and/or which are based upon, or are the
result of any breach of the warranties contained in this section (b). In the
event of a breach of warranty, Consultant shall, at no additional cost to ATS,
replace or modify the work product with a functionally equivalent and conforming
work product, obtain for ATS the right to continue using the work product and in
all other respects use its best efforts to remedy the breach. Consultant shall
have no liability under this section for any work product created in accordance
with detailed and specific design instructions created by ATS.
(c) Should ATS permit Consultant to use any of ATS's equipment, tools,
or facilities during the term of this Agreement, such permission will be
gratuitous and Consultant shall indemnify and hold harmless ATS and its
officers, directors, agents, and employees, from and against any claim, loss,
expense, or judgment for injury to person or property (including death) arising
out of the negligent use of any such equipment, tools, or facilities.
6. Termination
(a) Either ATS or Consultant may terminate this Agreement in the event
of a material breach of the Agreement which is not cured within ten (10)
business days after written notice to the breaching party of such breach.
Material breaches include, but are not limited to, the filing of bankruptcy
papers or other similar arrangements due to insolvency, the assignment of
Consultant's obligations to perform to third parties, or acceptance of
employment or consulting arrangements with third parties that are or may be
detrimental to ATS's business interests.
(b) ATS may terminate the Agreement for convenience upon written notice
to Consultant. In such event, Consultant shall cease work immediately after
receiving such written notice from ATS unless otherwise advised by ATS, and
shall notify ATS of costs incurred up to the termination date. ATS shall
reimburse Consultant for all costs incurred until notice of termination.
7. Independent Contractor
(a) Consultant is an Independent Contractor, is not an agent or
employee of ATS, and is not authorized to act on behalf of ATS.
(b) If Consultant is to autonomously perform work under this Agreement,
ATS is entitled to provide Consultant with general guidance to assist Consultant
in completing the scope of work to ATS's satisfaction, nevertheless Consultant
is ultimately responsible for directing and controlling the performance of the
tasks comprising the scope of work, in accordance with the terms and conditions
of this Agreement.
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8. General
(a) Except for a reduction in Work Statement as defined in Section I,
this Agreement may not be changed unless mutually agreed upon in writing by both
parties. In the event any provision of this Agreement is found to be legally
unenforceable, such provision will be changed to make it legally enforceable,
and such unenforceability shall not prevent enforcement of any other provision
of the Agreement.
(b) Notwithstanding any other provisions of this Agreement, Consultant
agrees not to export, directly or indirectly, any United States source technical
data acquired from ATS or any products utilizing such data to any countries
outside the United States which export may be in violation of the United States
Export Laws or Regulations. Nothing in this section releases Consultant from any
obligation stated elsewhere in this Agreement not to disclose such data.
(c) If Contractor breaches any of its covenants expressed in this
Agreement, he/she agrees that such a breach may cause irreparable harm to ATS,
and ATS shall have the right to seek equitable relief to enjoin further breach.
(d) This Agreement shall be governed by the Laws of the State of New
Hampshire, without resort to its rules regarding conflict of laws. In the event
that any dispute arises respecting this Agreement, the parties stipulate in
advance that the courts in New Hampshire shall be the proper venue for the
resolution of such dispute.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
Assure Tech Systems, Inc. Consultant
--------------------------- --------------------------
Signed, Duly Authorized Signed
--------------------------- --------------------------
Printed Name Printed Name
--------------------------- --------------------------
Position/Title Position/Title
--------------------------- --------------------------
Date Date
--------------------------
SSN / Fed. Tax No.
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PROFORMA EMPLOYMENT AGREEMENT
BETWEEN
ASSURETEC SYSTEMS, INC.
AND
("Employee")
This Employment Agreement ("Agreement") made as of the -- day of
------------ ("Effective Date"), by and between AssureTec Systems, Inc., such
corporation organized under the laws of Delaware with offices at 340 Granite
Street Suite 200, Manchester, NH 03102 (the "Employer"), and the above named
Employee who resides at the following address:
The Employer is presently engaged in a business that requires the
assistance of individuals with Employee's qualifications, skills and experience,
and during the course of such employment, the Employer expects to entrust to
Employee or have Employee develop certain confidential and proprietary
information essential to the success of Employer's business and anticipates that
Employee will come into contact with third parties having an actual or
anticipated business relationship with Employer. Further, the parties believe it
is in their mutual interest to address in this Agreement certain of their rights
and responsibilities arising out of such employment relationship pertaining to
ownership and protection of valuable confidential and proprietary information of
Employer, certain restrictions on business practices of Employee reasonably
needed to protect the Employer's legitimate business interests, and other
important considerations addressed herein.
In consideration of the premises and covenants and agreements contained
herein, and intending to be legally bound, the parties hereto agree as follows:
1. Employment, Duties and Acceptance.
a. The Employer hereby employs the Employee to render services on
behalf of the Employer and its subsidiary or affiliated companies in a capacity
as Director of Software Engineering and to perform those services normally
associated with such title in accordance with the terms of this agreement and
under the direction of management of Employer. Employee will also perform such
other assignments as may be assigned from time to time by Employer.
b. The activities of the Employee shall be performed principally from
his home or from Employer's offices located in Southern New Hampshire in which
the Employer's facilities are located and such other locations as the Employer
deems necessary. The Employee recognizes that their duties may require of him
overnight travel from time to time.
c. The Employee hereby accepts such employment by signing this
Agreement. The Employee shall devote all of their business time to the business
and affairs of the Employer, shall use their best efforts to promote the
interests of the Employer, and shall perform their duties faithfully, diligently
and to the best of their ability. Incidental participation in consulting for
prior clients of Employee (defined as less than 5% of Employee's normal and
customary full time business activities), shall be exempt from this provision
provided none of such prior clients competes in any way with the Company.
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d.The Employee represents and warrants that they understand the
importance of the provisions of this Agreement to him, and has consulted with
their own legal counsel to the extent desired by him in order that the
provisions of this Agreement and the legal and tax consequences hereof may be
understood and agreed to by him.
e. The parties acknowledge that the Employer intends that the
Employee's services, salary and other benefits provided for hereunder shall
commence as of the Effective Date.
2. Compensation.
a. _______ From the Effective Date and until _______________ employee
shall receive compensation at the rate of $_______ per month subject to required
withholding. Prior to the Employer reaching a contributed equity level of
$500,000, this compensation shall accrue and become payable to Employee upon
Employer reaching such $500,000 level of capitalization. So long as the Employee
continues to perform his duties under this Agreement, commencing with the pay
period following _____________ the Employer agrees to pay to the Employee, as a
base compensation for all their services to be rendered hereunder by the
Employee, a salary equal to $____________ per annum and subject to required
withholding. Health and dental benefits offered by the company will not be
provided. Other benefits adopted by the Company shall be made available to
Employee upon the Company reaching a capitalization of at least $500,000. A
performance and salary review shall occur periodically after commencement of
employment followed by a salary adjustment deemed appropriate by Employer. The
term for the accrual of all of this salary shall not extend beyond
________________ unless extended by both the Employer and the Employee. No
agreement exists or shall be implied to provide any other form of compensation
to Employee such as company vehicle, stock, bonus other than as provided
hereunder.
b. _______ In addition to the base compensation described in this
section, on the Effective Date hereof Employee shall receive a one-time stock
option award to acquire ___ shares of common stock of the Employer. ___ of the
underlying shares shall be fully vested, ___ shares shall vest ratably over a
period of two years of continued employment, and the remaining ____shares shall
vest upon meeting certain milestones as defined and agreed to on or before
______________ and agreed to by the Board of Directors. Failure to agree to such
milestones shall result in forfeiture of these ____ shares. The exercise price
for these options shall be $.001 per option share.
c. Employee will be eligible to participate in the executive bonus
program as approved by the board of directors.
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3. Expenses.
a. Following the Effective Date, Employee shall be entitled to
reimbursement for all normal and reasonable approved business expenses incurred
by him on behalf of the Employer upon presentation of vouchers or other evidence
of those expenses in accordance with the Employer's policies and including
$_______ incurred prior to the effective date of this agreement.
4. Benefits.
The Employee will also be permitted during the term of this Agreement
to take up to three weeks vacation each year, in accordance with applicable
policies of the Employer. Such time shall be pro rated for each calendar year.
Any vacation time not used by the Employee during any calendar year shall be
forfeited without obligation on the part of the Employer to compensate the
Employee therefore, except that a maximum of two (2) weeks vacation may be
carried over.
5. Termination.
a. Termination by the Employer for Cause. If the Employee shall, during
their employment (i) breach their fiduciary duty to the Employer, (ii) breach
any of the material terms of this Agreement, (iii) engage in any wrongful
appropriation of any significant opportunity properly belonging to the Employer;
or (iv) be convicted of a felony (any of the foregoing shall constitute "cause"
for purposes of this Agreement), the Employer shall have the right to
immediately terminate the Employee's employment, whereupon the Employee shall be
entitled solely to receive their then applicable base salary at the rate
provided in Section 2 to the last day in which such termination shall take
effect.
b. Early Termination by the Employer Without Cause. In the event that
the Employer terminates the services of the Employee during the term hereof
without cause (as set forth in (a) above), the Employee shall be entitled to
receive, and the Employer shall continue to pay to the Employee or accrue for
the benefit of Employee their base salary then payable pursuant to Section 2(a)
above for an additional period of two (2) weeks; however, such base salary shall
be due only so long as the Employee (i) makes himself available to, cooperates
with, and assists the Employer as a consultant and otherwise to effect an
orderly transition, and (ii) observes the covenants contained in Section 6
below. During the period of salary continuance as provided under this provision,
base salary in effect at the time of termination shall be the salary without
increase for the entire term of salary continuance. Employee shall have the
right to retain all option shares which have already vested provided the date
for achieving such vesting of shares shall not have expired as of the effective
date of termination.
In the event the Employee is terminated without cause during the first
twelve month period of employment, the provisions of Section 6(b) herein shall
be modified to reduce the period of non-competition by one month for each two
months less than one year from the date hereof. The parties intend that such
salary payments, credit for accrued salary plus the right to retain option
shares vested as of the effective date of termination shall constitute full and
liquidated damages for such termination without cause, and the Employee shall
have no duty to mitigate their losses by seeking other employment or income
during or in respect of the salary continuance period following such
termination. Employee shall have the right to retain all option shares which
have already vested provided the date for achieving such vesting of shares shall
not have expired as of the effective date of termination.
c.Termination by Employee. - ___ In the event the Employer fails to
raise at least $500,000 in new capital on or before _________________, Employee
shall have the right, upon written notice to the Employer, and in this event, to
resign from this Employment Agreement and Employee shall be released from the
provisions of Section 6 herein. In such event, Employee shall forfeit all issued
and option shares. Employee will be issued a note from the Employer for all
accrued salary through ___________________. This note will provide for no
interest and will provide for payment in full upon the Employer reaching a
capitalization of $500,000.
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In the event that the Employer terminates their employment with
Employer at any time other than as detailed in the pervious paragraph, the
Employee shall be entitled to receive, and the Employer shall pay to the
Employee their base salary at the rate provided in Section 2(a) and the benefits
provided in Section 5 through the end of the payroll period in which their
employment terminates. In addition, Employee shall be paid for any accrued or
accumulated vacation time. Employee shall have the right to retain all option
shares that are already vested provided the date for achieving such vesting of
shares shall not have expired as of the effective date of termination.
d. Benefits Payable Upon Death. In the event of the Employee's death
during the term hereof, the Employee or the Employee's designated beneficiaries
shall receive Employee's base salary at the rate provided in Section 2(a) and
the benefits provided in Section 5 through the end of the weekly payroll period
in which death occurred, plus payment for all accrued vacation time Employee
otherwise would be eligible for at the time of Employee's death. In addition,
the Employee's designated beneficiaries shall be entitled to receive the
available proceeds under any group term or other life insurance maintained for
the benefit of the Employee. In addition, the Employee's designated
beneficiaries shall be entitled to exercise within 60 days of such Employee
death, any vested stock options in which the Employee would otherwise be
eligible to acquire.
6. Covenants During or Following the Term of This Agreement by Employee.
a. Assistance in Litigation. The Employee shall, upon reasonable
notice, furnish such information and proper assistance to the Employer during or
following the term of this Agreement as may reasonably be required by the
Employer in connection with any litigation in which it or any of its
subsidiaries or affiliates is, or becomes, a party.
b. Covenant Not to Compete.
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(i) The Employee agrees that, except as provided at 1(c) hereof, during
the period of their employment and for six months thereafter, they will not,
except on behalf of the Employer or any of its subsidiaries or affiliates,
directly or indirectly, whether as an officer, director, stockholder, partner,
proprietor, associate, employee, consultant, representative or in any other
capacity, become involved or be interested in, or otherwise associated with in a
business activity, any other person, corporation, firm, partnership or other
entity whatsoever involving Employer sales agents, employees, customers.
Employee further agrees that during the period of their employment and for six
months thereafter, they will not engage in document authentication development
activities reasonably similar to the company's research and products in the
field of border control, check cashing verification, public transportation
passenger control and products reasonably similar to the company's products and
technologies whether or not protected by patent, such within any territory or
area in which the Employer is then engaging in business or providing goods or
services to its customers; provided, however, that anything to the contrary
notwithstanding, the Employee may own as an inactive investor securities of any
competitor corporation listed on a national securities exchange or traded in the
over-the-counter market, so long as their holding in any one such corporation
shall not in the aggregate constitute more than 2% of the voting stock of such
corporation. If Employee desires to have such non-compete period less than six
months, Employee shall submit such request in writing to the Employer within 30
days following termination of employment. Employer shall have no obligation to
consent to such request.
(ii) Without limiting the general obligations of the Employee to devote
their entire services to the Employer as hereinbefore described, the Employee
agrees that during their employment not to engage, directly or indirectly,
whether as principal, agent, owner, employee, contractor or otherwise,
individually or in combination with any other individual, corporation or other
entity, in any business which competes directly with an actively operated
business of Employer without written consent from the Employer.
(iii) Non-Solicitation of Fellow Employees and Agents. The Employee
further agrees that, during the period of their employment and for a period of
one (1) year after any termination thereof, for whatever reason, they will not
solicit any employee or Agent of the Employer or any subsidiary or affiliate of
the Employer to terminate their employment or agency relationship with the
Employer or any of its subsidiaries or affiliates.
(iv) If any restriction set forth in this Section 6(b) is found by any
court of competent jurisdiction to be unenforceable because it extends for too
long a period of time or over too great a range of activities or in too broad a
geographic area, it shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which it may be
enforceable.
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c. Proprietary Information.
(i) Employee agrees that all information and know-how, whether or not
in writing, of a private, secret or confidential nature concerning the
Employer's business or financial affairs (collectively, "Proprietary
Information") is and shall be the exclusive property of the Employer. By way of
illustration, but not a limitation, Proprietary Information includes, but is not
limited to, inventions, products, processes, methods, techniques, formulas,
compositions, compounds, Projects, developments, plans, research data, financial
data, personnel data, computer programs, and customer and supplier lists,
software and systems codes and architecture. Employee will not disclose any
Proprietary Information to others outside the Employer or use the same for any
unauthorized purposes without written approval of an officer of the Employer,
either during or after their employment, unless and until such Proprietary
Information has become public knowledge without fault by the Employee.
(ii) Employee agrees that all files, letters, memoranda, reports,
formulas, customer and agent lists, records, data, sketches, drawings,
laboratory notebooks, program listings, or other written, photographic, or other
tangible material containing Proprietary Information, whether created by the
Employee or others, which shall come into their custody or possession during
their employment by the Employer, shall be and are the exclusive property of the
Employer to be used by the Employee only in the performance of their duties for
the Employer.
(iii) Employee agrees that their obligation not to disclose or use
information, know-how and records of the types set forth in paragraphs (i) and
(ii) above, also extends to such types of information, know-how, records and
tangible property of customers of the Employer or suppliers of the Employer or
other third parties who may have disclosed or entrusted the same to the Employer
or to the Employee in the course of the Employer's business.
d. Patents and Other Developments. With respect to every patent, patent
application, invention, product, process, program, apparatus, design, trademark,
trade name, copyrightable work or other legally protectable form of
"intellectual property" which the Employee, singly or jointly with others,
during their employment by the Employer or any of its subsidiaries or affiliates
or during the two month period of salary continuance following termination of
employment, for any reason may (during normal business hours and/or using
"company" facilities or resources) invent, create, make, discover, conceive,
originate or reduce to practice and relating in any manner to the products,
devices, procedures, programs or schemes then being utilized by the Employer or
its subsidiaries or affiliates or which otherwise relate to the field of
research and or product development of the Employer or its subsidiaries or
affiliates, and the Employee:
(i) will promptly fully disclose same to the Employer and will not
disclose same to any other person, company or party without the Employer's
consent;
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(ii) does hereby assign same and all United States and foreign patent
applications, patents, trademarks, trademark applications, trade names and
copyrights that may be filed or issued thereon to the Employer;
(iii)will, but without personal expense, fully cooperate with the
Employer or any of its subsidiaries or affiliates, both during and following
employment with Employer, in applying for and securing in the Employer's name,
or that of its nominee or designees, patents(s), trademark(s), trade name(s) or
copyright(s) on the same in each country in the world in which the Employer or
its nominees or designees may desire to secure such protection or registration
and the Employee will promptly execute all proper documents presented to him for
signature by the Employer or its nominees or designees to enable it or them to
secure such protection or registration and to transfer legal title therein, to
Employer or its nominees or its designees;
(iv) will, but without personal expense, give such true information and
testimony as may be requested by the Employer or its nominees or designees
relative to the same or relative to such invention(s), product(s), program(s),
process(es), apparatus, design(s), trademark(s), trade name(s) or work(s)
invented, created, made, discovered, conceived, originated or reduced to
practice by any other person or persons and concerning which they have knowledge
by reason of their employment by the Employer, or any of its subsidiaries or
affiliates; and
(v) states that the only patents, inventions, products, processes,
programs, apparatuses, designs, trademarks, trade names or copyrights, or
applications for any of the same, in which the Employee personally holds an
interest prior to the Effective Date are listed and described in a Schedule
attached hereto and are not subject to this Agreement. The absence of any such
Schedule means that no such exceptions exist. The failure to list any of the
above items in which Employee holds an interest in a Schedule will not grant
Employer any rights therein.
e.Other Agreements. Employee hereby represents that they are not bound
by the terms of any agreement with any previous employer or other person or
company to refrain from competing, directly or indirectly, with the business of
such previous employer or any other person or company. Employee further
represents that their performance of all the terms of this Agreement and as an
Employee of the Employer does not and will not breach any agreement to keep in
confidence proprietary information, knowledge or data acquired by him in
confidence or in trust related to the Employer's business prior to their
employment with the Employer.
f. Employer's Legal Remedies. The Employer and the Employee agree that
a violation of the foregoing covenants of this Section 6 or any provision
thereof, will cause irreparable injury to the Employer and its subsidiaries and
affiliates, and that the Employer and its subsidiaries and affiliates shall be
entitled, in addition to any other rights and remedies they may have at law or
in equity, to an injunction enjoining and restraining the Employee from doing or
continuing to do any such act and any other violations or threatened violations
if this Section 6 or any provisions thereof.
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7. Nonassignability.
Neither this Agreement nor any right or interest hereunder shall be
assignable by the Employee, their beneficiaries, or legal representatives
without the Employer's prior written consent; provided, however, that nothing in
this Section 7 shall preclude (i) the Employee from designating a beneficiary to
receive any benefit payable hereunder upon their death, or (ii) the executors,
administrators, or other legal representatives of the Employee or their estate
from assigning any rights hereunder to the person or persons entitled thereunto.
8. No Attachment.
Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect.
9. Binding Agreement.
This Agreement shall be binding upon, and inure to the benefit of, the
Employee and the Employer and their respective permitted successors and assigns.
10. Complete Agreement.
This Agreement and any agreements specifically referred to herein
contain a complete statement of all arrangements between the parties with
respect to the subject matter hereof and supersede any previous agreements,
written or oral, relating to the subject matter hereof.
11. Amendment of Agreement.
This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
12. Waiver.
No term or condition of this Agreement shall be deemed to have been
waived, nor shall there by an estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless it specifically states such therein, and then, each such waiver shall
operate only as to the specific term or condition and shall not relate to any
act other than that specifically waived. A waiver of a term or condition of this
Agreement on any occasion does not imply that a waiver of the same term or
condition will or should be granted on any other occasion.
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13. Severability.
If, for any reason, any provision of this Agreement is held invalid,
such invalidity shall not affect any other provisions of this Agreement not held
so invalid, and such other provisions shall to the full extent consistent with
law continue in full force and effect. If any provision of this Agreement shall
be held invalid in part, such invalidity shall in no way affect the rest of such
provision not held so invalid, and the rest of such provision, together with all
other provisions of this Agreement, shall to the full extent consistent with law
continue in full force and effect. If this Agreement is held invalid or cannot
be enforced, then, to the full extent permitted by law, any prior agreement
between the Employer (or any predecessor thereof) and the Employee shall be
deemed reinstated as if this Agreement has not been executed.
15. Headings.
The headings of paragraphs herein are included solely for convenience
of references and shall not control the meaning or interpretation of any of the
provisions of this Agreement.
16. Governing Law.
This Agreement and its validity, interpretation, performance and
enforcement shall be governed by the laws of the State of New Hampshire.
17. Notices.
All notices which Employer is required or may desire to give to the
Employee shall be given by certified or registered mail, addressed to the
Employee at the address referred to above, or at such other place as the
Employee may from time to time designate in writing. All notices which the
Employee is required or may desire to give to the Employer hereunder shall be
given by certified or registered mail, addressed to Employer at its principal
office, or at such other office as Employer may from time to time designate in
writing. Five days after the date of mailing any such notice shall be deemed to
be the date of delivery thereof, unless actual prior delivery occurs.
18. Miscellaneous.
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The headings contained in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement. All pronouns shall be deemed to refer to
the masculine or feminine gender, as applicable.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Employee:
Signed: ___________________________
Printed
Name: ___________________________
Date:______________________________
AssureTec Systems, Inc.:
Signed:____________________________
Printed
Name: ___________________________
Title: _____________________________
Date:______________________________
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January 15, 2002
BRL Holdings, Inc.
340 Granite St., Suite 200
Manchester, NH 03102-4004
Gentlemen:
We have reviewed a Registration Statement on Form S-8 (the
"Registration Statement"), to be filed with the Securities and Exchange
Commission, relating to 508,484 shares of common stock, $.01 par value per share
(the "Shares") of BRL Holdings, Inc (the "Company"), which shares have been
issued pursuant to certain Company's consulting agreements and employment
agreements, the forms of which are filed as an exhibit to the Registration
Statement (the "Agreement").
We have examined the Certificate of Incorporation, as amended, and the
By-Laws of the Company and all amendments thereto, the Registration Statement
and originals, or copies certified to our satisfaction, of such records of
meetings written actions in lieu of meetings, or resolutions adopted at
meetings, of the directors of the Company, and such other documents and
instruments as in our judgment are necessary or appropriate to enable us to
render the opinion expressed below.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified or photo static copies, and the authenticity of the originals
of such latter documents.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly and validly authorized for issuance under the Agreement,
and the Shares, when issued against payment therefor in accordance with the
terms of their agreements, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
JBL:ah John B. Lowy, P.C.